Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/18891/2015
HU/13313/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 March 2018
On 4 April 2018

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

(1) MO
(2) SO
(ANONYMITY DIRECTION MADE)
Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the First Appellant: Ms T. Murshed, Counsel instructed by Mondair Solicitors
For the Second Appellant: Mr M. Mukulu, Counsel instructed by Orchid Solicitors
For the Respondent: Ms H. Aboni, Home Office Presenting Officer

Anonymity:

Unless and until a Tribunal or court directs otherwise, the appellants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their families. This direction applies both to the appellants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

DECISION AND REASONS

Background

1. The first appellant ("MO") is a citizen of Kenya born on 1 January 1987. On 12 March 2015 he applied for leave to remain in the UK on the basis of his family and private life. The application was refused on 27 April 2015.

2. The second appellant ("SO") is MO's younger brother. SO was born on 7 August 1991. On 10 July 2015 he applied for leave to remain in the UK on the basis of his family and private life. The application was refused on 25 November 2015.

3. MO and SO both appealed to the First-tier Tribunal. Their appeal's were listed together to be heard by Judge Rastogi ("the judge") on 13 January 2017 at Hatton Cross. The judge heard the appeals of MO and SO separately and separate decisions were delivered (both promulgated on 30 January 2017) dismissing the appeals. MO and SO are now appealing against the judge's decisions.

4. In both of the decisions, the judge gave as his reason for hearing the appeals separately that there were substantial differences in the factual issues in the appeals. The judge noted that Counsel for MO wanted the appeals heard together whereas Counsel for SO argued that they should be heard separately.

Preliminary Issue

5. At the outset of the error of law hearing, Ms Murshed and Mr Mukulu both requested that I should hear the appeals of their respective clients together. Ms Aboni did not object to this. I agreed and therefore the appeals were heard together, with Ms Murshed and Mr Mukulu being given the opportunity to comment on the grounds advanced by the other.

Decision of the First-tier Tribunal concerning MO

6. The factual background is that MO's mother died in 2001 whereupon he lived with his aunt and two siblings in Kenya. In December 2003 he travelled to the UK on a visitor visa in order to join his father. After arriving in the UK, he applied, unsuccessfully, for leave to remain as a dependent child of his father. His appeal was dismissed on 6 July 2005, with negative credibility findings being made about him and his father.

7. MO's father remarried in 2005. MO claims to consider his father's wife as a mother figure. Whilst in the UK, MO has obtained GCSEs and A-levels. He was offered a place at university which he was unable to take due to his immigration status.

8. In 2009, MO's father and stepmother had twins. MO's father, stepmother and half siblings ("the twins") are British citizens. MO claims to have a central role in raising the twins and a particularly close bond with them. His representative advanced the argument in the First-tier Tribunal that he has a "parental role" with the twins such that Section 117B(6) of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") is applicable. A report from a paediatric nurse was adduced which described MO as having a parental role with the twins. She concluded that MO's removal would have a great detrimental effect on them. MO's step mother, in her evidence, highlighted the bond between MO and the twins.

9. MO claims to have no family in Kenya and no familiarity with the country as an adult.

10. The judge, applying RK (s117B(6); "parental relationship") IJR [2016] UKUT 31 (IAC), found that MO had not taken on the role of a parent of the twins given that they live with their biological parents who have not relinquished their parental role.

11. Although the judge did not accept that MO had a parental role, he found that he and the twins enjoy a family life together as siblings and that they play an important part in each others' lives. The judge was also satisfied that MO shares a family life with his father.

12. The judge did not accept MO's claim to not have family in Kenya. The judge stated, at paragraph 44, that MO in his application referred to a brother named Duncan with whom he has no contact. The judge went on to state:

As [MO] has been here continuously for 13 years, I accept that if he does still have a brother there, then it is one he has not seen for 13 years. But for the reasons stated [MO] has failed to satisfy me that he has no relatives in Kenya.

13. The judge considered whether there would be "very significant obstacles" to MO reintegrating into Kenya under paragraph 276ADE(1)(vi) of the Immigration Rules. At paragraph 51 of the decision he stated:

In considering [MO's] ability to integrate, I have regard to the fact that although he has never lived in Kenya as an adult, he has been living throughout his stay in the UK in a Kenyan household, in the sense that at one time or another all adult members of the household have been Kenyan nationals. He speaks English and there is no evidence he does not speak any other languages that may be used in Kenya. Unlike his brother [SO] he has not acquired a London or British accident and as such I find he presents more obviously as Kenyan then his brother.

14. The judge also found that MO's father would provide him with financial support, at least until he established himself in Kenya.

15. The judge's assessment of Article 8 outside the rules is set out in paragraphs 52 to 76 of the decision. Having found that family life exists between MO, his father and the twins, the judge proceeded to assess the proportionality of his removal from the UK.

16. The judge began his analysis by considering the best interests of the twins. He found that whilst it would be in their best interests for MO to remain in the UK given their close relationship with him that would be lost by his removal, "that is secondary to remaining with their parents and is a factor more easily capable of being outweighed by other considerations." The judge also found that the children's best interests do not require MO to remain in the UK as their basic needs would not go unmet without him.

17. The judge applied the 2002 Act as follows:

a. Pursuant to Section 117B(1), significant weight was attached to the fact that MO cannot meet the requirements of the Immigration Rules and that the public interest requires his removal. The judge weighed against him that his entry to the UK involved deceit and that he has been in the UK unlawfully.

b. Pursuant to Section 117B(5), little weight was attached to the private life he has established in the UK, given his precarious immigration status. The judge found that MO's private life was at the upper end of the "little weight" spectrum.

c. MO is not financially independent (Section 117B(3)) but speaks English fluently (Section 117B(2))

d. Sections 117B(4) and (6) were said to not be applicable.

18. At paragraph 75, the judge summarised the balancing exercise under article 8. The concluding sentence of the paragraph states that MO "will be returning with his brother [SO] and I find this is likely to be a source of comfort for them both."

Decision of the First-tier Tribunal concerning SO

19. SO (like his brother MO) claims that his mother died in 2001 whereupon he lived with his aunt and two siblings in Kenya. He then, in December 2003, travelled to the UK on a visitor visa in order to join his father. Since arriving in the UK he has been living with his father, step mother, siblings and the twins. He helps with the care for the twins and is financially dependent on his father.

20. At the time of his application, SO believed he had a daughter who is a British citizen. However, a DNA test, taken as part of the application, revealed he was not in fact the father. Before the First-tier Tribunal he maintained, however, that he continued to have a parental relationship with the child.

21. SO has a girlfriend with whom he had been in a relationship for about four years by the time of the hearing in the First-tier Tribunal.

22. SO claims to have no family or connections in Kenya.

23. The judge found that SO has a family life, within the meaning of Article 8 ECHR, with his father and the twins but not with other members of the household. However, the judge found that SO's relationships with other family members form part of his private life in the UK.

24. In respect of SO's relationship with his girlfriend, the judge noted that they do not live together and as such they are not partners as defined in the Immigration Rules. The judge did not find the evidence of their relationship sufficient to give rise to family life between them. He stated:

"I accept their evidence about the closeness of their relationship and their intentions for the future but at present, the relationship does not have the hallmarks of longevity and commitment such as cohabitation, an intention to marry or actual wedlock to give rise to a family life."

25. With regard to the child SO previously believed to be his daughter, the judge found that he did not have a parental relationship or family life with her.

26. The judge found that SO would receive financial support from his father if returned to Kenya and would not be destitute. He stated that SO "may be returning alone or it may be he will be returning with [MO]". The judge acknowledged that because SO had been in the UK since he was 12 and to all intents and purposes presents as British he would face obstacles to integration in Kenya. However, the judge weighed against this that he has grown up in a Kenyan household, is a Kenyan citizen, has skills that may help him in Kenya and has the necessary attributes of a person capable of integrating into Kenyan life. The judge commented at paragraph 43 that he found that the obstacles SO would face are greater than those his brother MO would face, but they are not sufficient to give rise to "very significant obstacles" under Paragraph 276ADE(1)(vi) of the Immigration Rules.

27. In assessing the proportionality of SO's removal under Article 8 ECHR, the judge considered the best interests of the twins and the child SO previously considered his daughter. The judge did not consider that the best interests of the latter required SO to remain in the UK. With regard to the twins, the judge found that even though it would be in their best interests for SO to remain in the UK, this was "secondary to them remaining with their parents in the UK and [sic] more capable of being outweighed by other factors."

28. The judge applied Section 117B of the 2002 Act by (a) attaching significant weight to the fact that SO could not meet the requirements of the Immigration Rules; (b) taking note of his lack of financial self-sufficiency; (c) having regard to his ability to speak English fluently; (d) attaching little weight to his relationship with his girlfriend of four years given he was in the UK unlawfully when it started; (e) giving moderate weight to his private life on the basis that his circumstances place him at the upper end of the "little weight" spectrum in Section 117B(5); and (d) not applying section 117B(6)) on the basis that he did not have a parental relationship with the child he previously thought his daughter.

29. The judge considered, at paragraph 62 of the decision, the substantial amount of time SO has been in the UK and that at the date of the hearing (but not the application) he had spent over half of his life in the UK. However, the judge found that he could not place weight upon a "near miss" of the Immigration Rules (the relevant rule being Paragraph 276ADE(1)(v)).

Grounds of Appeal, Submissions and Analysis

30. Both MO and SO pursued multiple grounds of appeal. I will consider each in turn.

Analysis of grounds of appeal pursued by MO

A. Error in hearing the appeals separately

31. Ms Murshed submitted that there was commonality in the central part of both MO and SO's claims, which concerned their family life with their half siblings, father and stepmother, and it was artificial and unrealistic - and consequently unfair - to determine the appeals separately. She argued that hearing the claims separately was inconsistent with PD and Others (Article 8 - conjoined family claims) Sri Lanka [2016] UKUT 00108 (IAC), where it was held that the claims of a family should normally be heard jointly so as to ensure that all material facts and considerations are taken into account in each case. She also described the procedural history, which she argued showed how the claims had historically been linked, and contended that it was an error of law to hear them separately.

32. I asked Ms Murshed how MO was prejudiced by his appeal being considered separately to that of SO. Her response was that there was substantial overlap in the evidence and that because the hearings were separate all of the material facts relevant to MO were not before the judge, who was unable to look at the family situation as a whole.

33. Mr Mukulu submitted that as the family life of SO and MO emanates from the same home, the appeals of MO and SO could not fairly be determined unless they were heard together. He acknowledged that SO's previous representative had taken a different view, but made clear SO's position on this issue was now aligned with that of MO.

34. Ms Aboni's response was that the judge, having heard both representatives on the issue, was entitled to accept the submissions of SO's representative. She argued that although there were some overlapping issues, the core case advanced by MO was different to that of SO.

35. I agree with Ms Aboni that although SO and MO are brothers (and share a household with their father, step mother, and the twins) a large part of their appeals concerned different issues. MO was seeking to show he had a "parental" relationship with the twins; whilst SO's case rested, in part, on his relationship with his girlfriend and the child he believed (at the time of the application) was his daughter. That is not to say there were not significant areas of overlap - which clearly there were - but give the differences in the cases being presented there was a reasonable argument to hear the cases separately. The overriding objective (Section 2 of the Tribunal Procedure Rules 2014) and case management powers (Section 4), taken together, give a judge a broad discretion to decide how appeals should proceed. Having heard submissions from SO and MO's representatives, who took opposing views, it was open to the judge to decide to hear the appeals together, separately, or part together (in respect of the common issues) and part separately.

36. PD and others concerned a family unit (mother, father and child) who were facing removal together. Their claims were closely intertwined, with the parents' claim resting, in large part, on their being the parents of a teenage child who had lived continuously in the UK for 11 years and therefore that the public interest did not require their removal under Section 117B(6) of the 2002 Act. It was also a case where if the parents lost the appeal the consequence would be to stultify the Tribunal's decision regarding the child who qualified for leave under the Immigration Rules. Neither SO or MO's case is analogous to PD and others. Their family life claims are not about the relationship they have with each other. In contrast to the situation in PD and others, the consequence of one not succeeding in his appeal but the other succeeding would not be to negate the outcome of the one who succeeded.

37. In any event, I do not accept that either SO or MO were prejudiced by the appeals being heard separately. The fact that there were areas of commonality did not prevent each of them raising those issues in their appeal and their appeals were not dependent on each other's. I am in no doubt that the outcome of SO and MO's appeals before the judge would have been the same whether or not the appeals were heard together.

B. Error in taking SO's case into account in the determination of MO's appeal

38. Ms Murshed argued that once the appeals had been separated the judge was not entitled to make reference to evidence or findings in the other appeal. The grounds identify (and are critical of) the following references to SO's appeal in the decision concerning MO's appeal:

a. At paragraph 43 the judge made a finding that SO and MO lived together and this relationship formed part of MO's private life in the UK.

b. At paragraphs 44, 73 and 75 the judge referred to SO and MO returning to Kenya together. At paragraph 75 the judge said that this was likely a source of comfort to them both.

c. At paragraph 51 the judge contrasted MOs accent to that of SO (which was said to be more of a "London or British accent").

39. The argument advanced by Ms Murshed was that the findings about SO "contaminated" the MO decision and it was procedurally unfair to rely on findings from the SO case in the MO appeal.

40. Ms Aboni's response was that the judge was entitled to take into account that MO and SO would be returning together to Kenya. She also submitted that MO was not prejudiced by the references to SO.

41. I agree with Ms Aboni. Had the judge taken evidence and submissions that were before him in the SO hearing and relied upon them in the MO decision without giving MO an opportunity to respond, that would have been an error of law (although the materiality would still need to be considered). However, this is not what has occurred.

42. At paragraph 43 the judge observed that MO and SO had lived together. This is not a finding from the SO case being imported into the MO case. It is a finding that was properly made based on the evidence before the judge in MO's appeal.

43. At paragraphs 44, 73 and 75 the judge referred to MO and SO returning to Kenya together. This is not evidence or submissions from SO's appeal being relied upon in the MO case. It is simply an observation of the consequences of them both being unsuccessful in their appeals.

44. The judge's comment at paragraph 51 comparing MO and SO's accents is an observation by the judge. The point being made by the judge is that MO does not have a British accent (which is a finding he was entitled to make having heard MO give oral evidence). Nothing in the MO appeal turned on the fact that the judge considered SO to have more of a British accent.

45. In a lengthy and detailed decision, the judge has made very few mentions of SO. The few mentions that were made are peripheral (and not material) to the decision. I am satisfied that the judge determined MO's case based solely on the evidence and submissions that were before him in that case. This ground of appeal therefore cannot succeed.

C. The judge unfairly failed to raise with MO his concerns about MO's brother Duncan before finding that MO failed to establish he did not have family in Kenya.

46. This ground of appeal concerns the judge's findings about MO's late brother Duncan. The relevant paragraphs of the decision are 25 and 44 where the judge stated:

"25. [MO] gave an explanation in his witness statement as to why, when asked about Duncan in the previous appeal hearing, he did not say that this was his brother who had drowned. He explained he was nervous and anxious and he got confused as there is another man the new in Kenya called Duncan. As the respondent was not present at the hearing [MO]'s evidence about this was not challenged. I occasionally back in the note in passing that in his application form [MO] stated he had a brother named Duncan living in Kenya. This was not a fact that I noticed until preparing this determination. He was represented and both he and his representatives would have known this was an issue in the previous determination."

"44. As for the circumstances in Kenya, [MO] claims not to have any family there. The issue about the man named Duncan is not completely resolved. [MO]'s own application says he has a brother named Duncan with whom he has no contact. As MO has been here continuously for 13 years, I accept that if he does still have a brother there, then it is one he has not seen for 13 years. But for the reasons stated MO has failed to satisfy me that he has no relatives in Kenya."

47. Ms Murshed argued that it was procedurally unfair for the judge to not raise the issue about Duncan. She argued that as the judge only noticed the issue after the hearing, he ought to have written to the parties in order to enable them to make submissions. Had he done so, his attention could have been drawn to the death certificate in the bundle confirming Duncan was deceased.

48. Ms Aboni argued that even if judge erred, the error was not material given that Duncan was not a significant factor in assessing the circumstances MO would face on return to Kenya.

49. I agree with Ms Murshed that the judge fell into error by not giving MO an opportunity to make submissions about Duncan and that if he had been given this opportunity he would have drawn to the judge's attention evidence which established, on the balance of probabilities, that Duncan is dead. However, I do not consider this error material. In his evaluation of whether there would be "very significant obstacles" to MO integrating into Kenya, the judge considered a range of factors unrelated to Duncan, including that MO:
a. has grown up in a Kenyan household;
b. speaks English and has not acquired an English accent that would mark him apart in Kenya;
c. will receive some financial support from his father; and
d. will be returning with his brother SO.

50. Reading the decision as a whole, it is apparent that the judge's conclusion that there would not be very significant obstacles to MO integrating into Kenya (as well as his conclusion that removal of MO from the UK would not be disproportionate) did not depend on the presence of Duncan in Kenya and that the same conclusion would have been reached whether or not Duncan was taken into account.

D. The judge erred in considering the best interest of the twins

51. This ground argues that the judge erred in the approach taken to the evidence of MO, his parents and the nursing expert as to the impact on the twins of MO's removal.

52. The decision contains a detailed evaluation of the evidence pertaining to the twins. It therefore is not arguable that the judge failed to consider the evidence.

53. In my view, this ground of appeal is no more than a disagreement with the weight the judge gave to the evidence about the twins. Ultimately, Ms Murshad's argument was that more weight should have been given to the evidence of MO, his parents and the expert as to the extent of negative impact on the twins of MO's removal. However, the weight to give to this evidence was a matter for the judge and a disagreement about weight is not a basis upon which the decision can be challenged.

54. I am satisfied that the judge followed the correct approach to the evidence concerning the twins. The judge began his assessment of Article 8 outside the Immigration Rules by considering what would be in their best interests, which he described as a primary consideration. He summarised in detail the evidence that was before him from the twins' parents and the expert about their close bond (which he accepted) with MO. The judge found, inter alia, that the twins' lives would be disrupted by the loss of their sibling and carer and that there is potential for emotional harm (although he did not accept the expert evidence as to the likelihood of this). He concluded that it would be in their best interests for MO to remain in the UK, although he added the caveat that this was secondary to remaining with their parents. Having made a finding as to the twins' best interests, the judge proceeded to take this into account in the balancing exercise under Article 8, where the judge found it to be outweighed by other factors. There is no error this approach, which accords with that adopted in Kaur (children's best interests / public interest interface) [2017] UKUT 00014). Accordingly, this ground of appeal cannot succeed.

E. The judge failed to place sufficient weight on the fact that MO was a child when he entered the UK and has lived all his adult life in the UK

55. Ms Murshad argued that in the Article 8 balancing exercise the judge failed to consider the length of time MO has been in the UK or that he arrived as a minor following his mother's death. Ms Aboni, in response, argued that the judge took into account the relevant considerations.

56. I agree with Ms Aboni. The judge wrote a detailed and thorough decision where a careful balancing exercise under Article 8 was carried out. It is simply not the case that the length of time MO has been in the UK, or that he came as a minor, has been ignored. At paragraph 43 and paragraph 44, for example, the judge referred to MO having been in the UK for 13 years. At paragraph 68 reference is made to MO having come to the UK as a child. Accordingly, I am satisfied that this ground of appeal is not sustainable.

Analysis of the grounds of appeal pursued by SO

A. The judge erred by finding that SO did not have a family life with his step-mother.

57. The judge found that SO has a family life, within the meaning of Article 8 ECHR, with his father and the twins but not with his step-mother. Mr Mukulu contended that the evidence showed that SO's step mother had effectively become his mother and it was irrational to find that there was a family life with SO's father but not his stepmother. He also argued that the judge erred by not having regard to the step mother's evidence.

58. Mr Mukulu is correct that the judge dealt only briefly with the relationship between SO and his stepmother and that the decision does not contain an assessment of the evidence of the stepmother. This, however, does not mean that the judge has made an error of law. There was a considerable amount of evidence before the judge and he was not required to address every aspect of it in the decision. SO's primary case concerned his relationship with his (assumed) child, the twins and his father. These issues were all thoroughly dealt with by the judge. I do not agree that failing to address specifically the evidence of the step mother was an error.

59. However, even if the judge did err, the fundamental difficulty with Mr Mukulu's argument is that a finding that SO enjoyed family life with his stepmother would not have made any difference to the outcome of the appeal. There was no evidence before the judge to indicate that the relationship between SO and his step mother had a quality or nature that went beyond that between SO and his father. On the contrary, the argument made by Mr Mukulu was that the relationship between SO and his step mother was analogous to that between SO and his father. Because the judge found that there was family life between SO and his father, he assessed the proportionality of SO's removal in light of that relationship. Had family life been found with the step mother as well as the father, the evaluation of the proportionality of SO's removal would have been the same as there was nothing that the addition of the step mother would have contributed to the proportionality exercise beyond the issues arising because of the relationship between SO and his father. Accordingly, even if (which I do not accept) the judge erred by not finding SO and his step mother had a family life within the meaning of Article 8 ECHR, the error would not have been material as it would have made no difference to the outcome.

B. The judge erred by not finding family life existed between SO and his girlfriend

60. The grounds of appeal submit that, having accepted the evidence of SO and his girlfriend that they are in a close relationship which has lasted for four and that their intention is to cohabit/marry in the future, it followed that family life should have been found to exist. Mr Mukula argued before me that the judge's conclusion to the contrary was irrational.

61. I disagree. In Danso v Secretary of State for the Home Department [2015] EWCA Civ 596, the appellant was in a long term relationship with a woman he intended to marry but with whom he did not cohabit. The Court of Appeal found that whether the relationship could be described as amounting to family life was debatable and that the Tribunal's finding that the relationship had not reached the stage at which it could be described as family life was not perverse. The factual matrix in this case is analogous and I am satisfied that it was open to the judge to conclude that family life did not exist between SO and his girlfriend.

62. In any event, the judge, at paragraph 55, considered the position in the alternative; stating that if he had found family life to exist he would have attached little weight to it in accordance with Section 117B(4) of the 2002 Act, given that the relationship began whilst SO was in the UK unlawfully. This conclusion was clearly open to the judge. SO and his girlfriend had been together for only four years, did not cohabit, did not have any children and had commenced the relationship in the knowledge that SO was in the UK unlawfully. It is unlikely any judge would have attached more than little weight to the relationship in the proportionality exercise under Article 8. Accordingly, if the judge erred in finding family life did not exist (which I do not accept), the error would not have been material given that the judge would have placed only little weight on the relationship in the Article 8 balancing exercise.

C. The judge erred in assessing SO's parental relationship with the child he thought was his daughter and the best interests of that child

63. Mr Mukula advised that these grounds were not being pursued.

D. The judge erred by attaching considerable weight to the fact that SO could not meet the Immigration Rules and in the approach taken to the public interest

64. Mr Mukula argued that because the Immigration Rules do not make provision for the circumstances relevant to SO, it is "double counting" the public interest to weigh against SO that he could not satisfy the Rules. He submitted that this is not part of the balancing exercise under Article 8.

65. I asked Mr Mukulu if there was any case law which supported his contention. He was unable to cite any. This is not surprising. Section 117B(1) of the 2002 Act requires judges to take into account, when considering the public interest, that the maintenance of effective immigration controls is in the public interest. As a consequence, when assessing the proportionality of removing a person from the UK, weight must be given to the fact that the Rules have not been met. It was therefore correct for the judge to attach weight to the fact that SO did not meet the Immigration Rules. This challenge to the decision has no merit.

Conclusion

66. For the reasons set out above, I am satisfied that the judge did not make a material error of law in either of the appeals.

Decision

67. The decision of the First-tier Tribunal in the appeal by the first appellant (MO) did not involve the making of any material error of law. MO's appeal is dismissed.

68. The decision of the First-tier Tribunal in the appeal by the second appellant (SO) did not involve the making of any material error of law. SO's appeal is dismissed.

Deputy Upper Tribunal Judge Sheridan

Dated: 29 March 2018